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November 23, 2010

Another Gay Rights Case Headed Back to the Ninth Circuit

The Obama administration -- waiting until the last minute -- has filed a notice of appeal in the case of a lesbian who fought and won reinstatement after being discharged under “Don’t Ask Don’t Tell.”

The Justice Department filed papers today saying it’s appealing to the Ninth Circuit a Washington state judge’s ruling in Witt v. Dep't of Air Force.

The appeal comes as the Ninth Circuit also is working on the Log Cabin Republicans Don’t Ask case, which features an even more consequential district court ruling striking down the policy globally. The Witt case, which has already had one go-round before the Ninth Circuit, applies only to the plaintiff, Margaret Witt, a major discharged from the Air Force reserves.

In that case, Washington District Judge Ronald Leighton in September said she should be restored to the position of flight nurse after finding the application of Don’t Ask Don’t Tell did not “significantly further the government’s interest in promoting military readiness, unit morale and cohesion.” Her discharge, he found after a bench trial, violated her substantive due process rights.

Leighton’s ruling in her favor came after the judge had originally granted the government’s motion to dismiss. Witt appealed and won a ruling from the Ninth Circuit that said something more than traditional rational basis review was required.

These cases are on top of the closely watched Prop 8 gay marriage case and the still unresolved matter of a female Ninth Circuit attorney fighting for benefits for her wife.